J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Sunday, January 27, 2013

“When the senate should have had an opportunity to act”

Joseph Story was only a boy in Marblehead when the Constitution was written. However, he became a Supreme Court justice and a Harvard law professor and thus a very influential commenter on that document. This is how he interpreted the recess appointment clause in 1833:
the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have had an opportunity to act on the subject. . . . [This course] combines convenience, promptitude of action, and general security.

The appointments so made, by the very language of the constitution, expire at the next session of the senate; and the commissions given by him have the same duration. When the senate is assembled, if the president nominates the same officer to the office, this is to all intents and purposes a new nomination to office; and, if approved by the senate, the appointment is a new appointment, and not a mere continuation of the old appointment.
Story clearly believed that a recess appointment “should expire, when the senate should have had an opportunity to act on the subject.” He even wrote that such appointments “expire at the next session” of the Senate, not “at the End of their next Session,” which is the Constitution’s language (with my emphasis).

Story wrote only a few years after a conflict over appointments between President Andrew Jackson and the Senate. During an 1829 Senate recess, Jackson named many political supporters to federal offices, particularly newspaper editors. The Senate eventually got to vote on those men and rejected at least nine. Though the administration later renominated those supporters or found new posts for them, that conflict appears to fit within Justice Story’s interpretation of the recess appointments clause: such appointments should last only until the Senate has a chance to vote on them.

In 1884 and afterwards, however, the U.S. courts ruled that the Senate could not remove an official named by recess appointment from office. Those decisions have their roots in Justice Department documents from the Jackson administration back in 1830, but they disagree with Story’s understanding and, I suspect, the Constitutional Convention’s expectations.

Since then, Presidents of both parties have expanded the use of the recess appointment. They have filled positions not just between formal Senate sessions but also in shorter recesses during those sessions. Presidents have argued that such appointments become necessary as the Senate increasingly refuses to vote on nominees, even when a majority is ready to; such filibusters also seem like a distortion of what the Constitutional Convention imagined, and unproductive for the country as well.

Nevertheless, our legal system isn’t based just on what Alexander Hamilton wrote in 1788 or Joseph Story wrote in 1833, but on the whole line of precedents. Courts have considered many aspects of recess appointments and generally found the practice constitutional. This week a U.S. Circuit Court panel ruled the other way, saying President Barack Obama overstepped that authority and imposing limits not applied to recent past Presidents. The issue seems headed for the Supreme Court.


Burkhalter said...

Let's think this through. The intentions of the Founding Fathers was to have the President's appointments approved by the Senate, as one of the Checks and Balances. If the President had any appointee that would not be approved by the Senate, a President could wait until the Recess and appoint that person. Clearly Justice Story’s understanding of having recessed appointees approved aas soon as the Senate was back in session meets "the Constitutional Convention’s expectations".

J. L. Bell said...

I think so, too, but by the late 1800s the Supreme Court had decided differently, reading the clause literally to mean the appointee could remain in office through the end of the Senate’s next session. Some Congresses passed laws saying that no one who had received a recess appointment and then been voted down by the Senate could be paid, but according to the court such a person could nonetheless remain in office.

Another factor in how this clause changed in practice was travel. In the 1700s travel was so difficult that a legislature generally met with few interruptions for a stretch of months and then all went home. That made the recess between sessions longer and easier to define. In the twentieth century Congress began to meet and disperse more often since it was easier to travel to home states. That made it harder to draw a line between "recess" and "session." If the framers at the Constitutional Convention had foreseen that, they might have been more specific about what defined a recess.

Finally, there's the filibuster. Although it has roots in the 1800s, it's never been used as much as today. Would the framers have thought that a Presidential appointment could simply be ignored for months on end? Probably they wouldn't have thought that was a valid or productive aspect of government. If the Senate could really fix the filibuster, then we could go back to administering recess appointments the way the framers probably expected.